Obesity remains a serious health problem and it is no secret that many people want to lose weight. Behavioral economists typically argue that “nudges” help individuals with various decisionmaking flaws to live longer, healthier, and better lives. In an article in the new issue of Regulation, Michael L. Marlow discusses how nudging by government differs from nudging by markets, and explains why market nudging is the more promising avenue for helping citizens to lose weight.

Armed with a computer model in 1935, one could probably have written the exact same story on California drought as appears today in the Washington Post some 80 years ago, prompted by the very similar outlier temperatures of 1934 and 2014.

Two long wars, chronic deficits, the financial crisis, the costly drug war, the growth of executive power under Presidents Bush and Obama, and the revelations about NSA abuses, have given rise to a growing libertarian movement in our country – with a greater focus on individual liberty and less government power. David Boaz’s newly released The Libertarian Mind is a comprehensive guide to the history, philosophy, and growth of the libertarian movement, with incisive analyses of today’s most pressing issues and policies.

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Tag: Constitution

On Friday, the IRS admitted that when “social welfare” groups with the terms “tea party” or “patriot” in their names applied for 501(c)(4)/tax-exempt status, IRS agents targeted them for extra (and extra-legal) scrutiny to ensure they were not engaged in politicking. The Washington Post reports, “about 75 groups were selected for extra inquiry — including, in some cases, improper requests for the names of donors.” IRS agents did not apply similar scrutiny to groups with “progressive” in their names.

Over the weekend, more details emerged. It now appears the IRS lied to Congress about this practice for more than a year. It also appears the IRS is still targeting tea-party groups today, in part because IRS bureaucrats believe groups that “educat[e] on the Constitution and Bill of Rights” deserve greater scrutiny.

Here’s a rundown.

Senior IRS officials have known about these abuses for nearly two years. The Associated Press reports: “Senior Internal Revenue Service officials knew agents were targeting tea party groups as early as 2011…on June 29, 2011, Lois G. Lerner, who heads the IRS division that oversees tax-exempt organizations, learned at a meeting that groups were being targeted, according to the watchdog’s report. At the meeting, she was told that groups with ‘Tea Party,’ ‘Patriot’ or ‘9/12 Project’ in their names were being flagged for additional and often burdensome scrutiny…Lerner instructed agents to change the criteria for flagging groups ‘immediately’…”. IRS agents also gave extra scrutiny to groups that “criticize how the country is being run.”

But six months later, the IRS applied a new political test to groups that applied for tax-exempt status as “social welfare” groups, the document says. On Jan. 15, 2012 the agency decided to target “political action type organizations involved in limiting/expanding Government, educating on the Constitution and Bill of Rights, social economic reform movement”…

The agency did not appear to adopt a more neutral test for social welfare groups…until May 17, 2012…

Of course, these revised criteria are not politically neutral either. Tea-party groups are still far more likely to receive extra scrutiny than progressive groups. Lots of right-leaning political groups describe their mission as working to limit government or educate people about the Constitution. Far fewer left-leaning groups emphasize educating people about the Constitution or openly declare their mission is to expand government. And note: the U.S. government treated groups as suspect if they educate the public about the Constitution and Bill of Rights. Let that one sink in.

The IRS lied to Congress for more than a year. The Associated Press reports: “At a congressional hearing March 22, 2012, [then-IRS commissioner Douglas] Shulman was adamant in his denials. ‘There’s absolutely no targeting.’” Senior IRS staff knew that claim was false nine months before Shulman made it. Yet they let Shulman’s false statement to Congress go uncorrected, amid a congressional investigation into whether the IRS was targeting tea-party groups, for another 14 months. According to the Washington Post, “The IRS made no mention of targeting conservative groups in five separate responses to congressional inquiries between Nov. 18, 2011, and June 15, 2012, according to the [inspector general’s] timeline.” Even if we view the facts in the light most favorable to the IRS and assume Shulman did not know he was uttering a falsehood – which, by the way, would mean he is a very poor manager – the IRS’s failure to correct that falsehood pretty much makes it a lie. I don’t mean that in the phony way PolitiFact uses the term. I mean a real lie.

The IRS did not come forward of its own accord. The Associated Press: “The Treasury Department’s inspector general for tax administration is expected to release the results of a nearly yearlong investigation in the coming week.” House Oversight Committee chairman Darrell Issa (R-CA) put it, “Before the IG’s report comes to the public or to Congress as required by law, it’s leaked by the IRS to try to spin the output. This mea culpa’s not an honest one.”

IRS officials maintain the targeting of tea-party groups was the work of low-level employees and not politically motivated. Yet the agency has shown a willingness to deceive Congress and the public about its own misconduct. Congress should conduct a thorough investigation.

Even if it is true that low-level IRS bureaucrats were acting on their own, Congress’ investigation should examine the role Obama administration officials played in encouraging those bureaucrats to single out the tea party. As New York Times columnist Ross Douthat explains:

Where might an enterprising, public-spirited I.R.S. agent get the idea that a Tea Party group deserved more scrutiny from the government than the typical band of activists seeking tax-exempt status? Oh, I don’t know: why, maybe from all the prominent voices who spent the first two years of the Obama era worrying that the Tea Party wasn’t just a typically messy expression of citizen activism, but something much darker — an expression of crypto-fascist, crypto-racist rage, part Timothy McVeigh and part Bull Connor, potentially carrying a wave of terrorist violence in its wings.

It would be very bad if senior Obama administration officials ordered the IRS to intimidate the president’s political opponents. It would scarcely be better if administration officials denounced their opponents until IRS bureaucrats took the hint.

Last year’s partial victory in the Obamacare case is already being applied to new cases reaching the Supreme Court. Recall that, in that case, the Court accepted our argument that the government cannot use the Commerce and Necessary and Proper Clauses to compel someone to purchase health insurance. The Court held that allowing Congress to compel commerce into existence would be an improper use of a great and limitless power. In United States v. Kebodeaux, the Supreme Court will once again address an assertion of power that, if upheld, could give Congress nearly limitless power.

In 1999, Anthony Kebodeaux was sentenced to three years in prison for statutory rape. He served his time, was freed from any post-release parole or probation requirements, and ended his relationship with the federal government in the matter of criminal law. Years later, when Kebodeaux moved intrastate from San Antonio, Texas to El Paso, Texas, he failed to update his change of address within the three-day period as required by the federal Sex Offender Registration and Notification Act (SORNA) of 2006. Even though Kebodeaux was unconditionally released from custody before SORNA was enacted, he was sentenced to one year in federal prison. The Fifth Circuit overturned his conviction en banc, meaning that every judge on the Fifth Circuit heard the case rather than the traditional three-judge panel. They found the registration requirement unconstitutional because Congress lacked jurisdiction over Kebodeaux after they unconditionally released him from custody.

The government’s arguments to the contrary, the court held, would permit not just “unending criminal authority” over Kebodeaux but unending authority over every American who was once in federal jurisdiction, which is, of course, every American.

In a sense, the government is now arguing for the “Hotel California” theory of jurisdiction: you can check out, but you can never leave.

Yesterday, Cato filed an amicus brief, joined by Ilya Somin, Professor of Law at George Mason University School of Law, arguing that it would be improper under the Necessary and Proper Clause to permit Congress to have unending authority over all Americans. Congress already lacks a general power to punish criminals, much less monitor previously released criminals and impose new and onerous restrictions on them at will. Moreover, there is nothing constitutionally special about sex offenders as a class. Congress should not be allowed to designate a sub-class of people within its jurisdiction as “special” and then assert perpetual jurisdiction over them. These type of assertions of power are precisely what the “proper” element of the Necessary and Proper Clause is supposed to protect against–ones that, even if “necessary,” would give Congress unbounded power.

Indeed, if the Court rules in favor of the government’s position, it will give Congress virtually unlimited power to regulate nearly all Americans. In essence, it would justify the gradual imposition of endless new requirements on anyone who had previously been subject to federal jurisdiction. Cumulatively, these federal impositions amount to unlimited federal authority over anyone who has ever been held in federal custody or otherwise in federal jurisdiction. This cannot be a power vested in a Congress with “few and defined” powers. As the Supreme Court held in the Obamacare case, Congress doesn’t have the power to “regulate an individual from cradle to grave.”

Good-hearted people want to cure hunger, ignorance, and other human deficits. Many see the cure in taking from the group of “haves” and giving to the “have-nots.” Along with the injustice of the transfer itself, libertarians like to point out the backward incentives that generous, systematic giving creates. Poverty and ignorance becomes a low-end, but survivable, mode of living. It’s not really a surprise that these problems respond to subsidy by becoming intractable.

That’s simple math to people who understand incentives, so it shouldn’t be hard to recognize incentive structures and their warping in other areas. Take federalism. The Constitution set out a design for government that aligned political incentives well. With a limited federal government and plenary powers left with the states, elected officials closer to the people would provide better government because they would be responsible to smaller numbers of people at the ballot box.

When state officials go wrong, good-hearted, economically-minded people want to cure their deficits. Many see the cure in removing power from the state level to the federal through preemption. State regulation can interfere with national markets, and there is a Commerce Clause that arguably permits national regulation of all things commercial.

But the Commerce Clause was not a grant of plenary authority over commerce anywhere in the United States. It gave Congress power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Think of a border sentry tasked mostly with preventing anyone from erecting gates.

One can “fix” bad state regulation by replacing it with a less-bad, nationally uniform rule. But doing so frees state officials from responsibility. The subsidy makes carelessness a low-end, but survivable mode of governing.

So with California Attorney General Kamala Harris brandishing $2,500 finesper download of apps in California if they don’t meet the terms of the California Online Privacy Protection Act, I don’t think the right answer is for the federal government to whisk in with its own less-bad privacy law that preempts California’s. The attorney general and the authors of California’s law should be allowed to let their behavior have its effects in their state, responding to their state’s voters if it has negative consequences.

The federal government’s only response should be to make clear that there are limits on California’s ability to bring out-of-staters into court. The federal government should preserve the right of people and businesses to exit states that make themselves unfriendly through high taxes, poor services, and inefficient regulation. This will set up the incentive structure under which governance in the United States will thrive, perhaps at the cost of California sinking into the ocean.

Remember how an adviser to the federal Department of Health and Human Services said the department would have to “get creative” on funding federal health insurance exchanges, because states were refusing to create their own and ObamaCare provides no source of funding for federal exchanges? Well, HHS released its very creative response in a Friday news dump today, and the answer is “user fees” of 3.5 percent on all health insurance plans sold through federal exchanges.

But is that a little too creative? Does HHS have the authority to tax health premiums in its exchanges? Here’s what the department’s proposed regulation says:

Federally-facilitated Exchange user fees: Section 1311(d)(5)(A) of the Affordable Care Act contemplates an Exchange charging assessments or user fees to participating issuers to generate funding to support its operations. As the operator of a Federally-facilitated Exchange, HHS has the authority, under this section of the statute, to collect and spend such user fees. In addition, 31 U.S.C. 9701 provides for an agency to establish a charge for a service provided by the agency. Office of Management and Budget Circular A-25 Revised (“Circular A-25R”) establishes Federal policy regarding user fees and specifies that a user charge will be assessed against each identifiable recipient for special benefits derived from Federal activities beyond those received by the general public. In this proposed rule, we establish a user fee for issuers participating in a Federally-facilitated Exchange.

I don’t know anything about 31 U.S.C. 9701 or Circular A-25R. But here’s the Section 1311(d)(5)(A) language upon which they rely:

NO FEDERAL FUNDS FOR CONTINUED OPERATIONS.—In establishing an Exchange under this section, the State shall ensure that such Exchange is self-sustaining beginning on January 1, 2015, including allowing the Exchange to charge assessments or user fees to participating health insurance issuers, or to otherwise generate funding, to support its operations.

A few thoughts:

It is interesting that when the federal government wants to justify generating funds for their Exchanges’ operational expenses, they cite for authority a paragraph titled, “NO FEDERAL FUNDS FOR CONTINUED OPERATIONS.”

The proposed regulation correctly notes that Section 1311(d)(5)(A) only “contemplates” state Exchanges charging assessments. It certainly doesn’t authorize states to make such assessments; states already have the authority to impose such levies. (They are states, after all.) Nor does it even direct states to levy user fees. It says, in essence, “You gotta fund this yourself. Here are a couple of methods. Knock yourselves out.” Since Section 1311(d)(5)(A) doesn’t give states the authority to levy such taxes, it’s hard to see how that paragraph translates into “HHS has the authority, under this section of the statute, to collect and spend such user fees” (emphasis added).

Section 1311(d)(5)(A) speaks specifically of states. It makes no mention of the federal government. Lest anyone think its mention of “an Exchange” could refer to state or federal exchanges, I refer you four paragraphs up to Section 1311(d)(1), which imposes another “REQUIREMENT … An Exchange shall be a governmental agency or nonprofit entity that is established by a State.” Or is the federal government again claiming that it can establish an Exchange that is established by a state?

Again, I don’t know anything about 31 U.S.C. 9701 or Circular A-25R. But the fact that HHS also cited them makes me think they lack confidence in their claim that Section 1311(d)(5)(A) authorizes them to do this. And the fact that they listed them after their Section 1311(d)(5)(A) claim makes me wonder if they even weaker.

I’ll be looking into this. But I would be interested to hear from anyone with expertise in 31 U.S.C. 9701 or Circular A-25R.

But, confident of their case, some health law opponents, including Jonathan Adler of Case Western Reserve Law School, Michael Cannon of the libertarian Cato Institute and National Affairs editor Yuval Levin, are urging Republican-led governments to refuse to set up the online insurance purchasing exchanges, which would, as the argument goes, make their residents ineligible for the tax credits and subsidies. They say that this step also would gut the so-called employer mandate, which the law says will take effect in states where residents are eligible for such assistance…

As even some health law supporters concede, the claim that Congress denied to the federal exchanges the power to distribute tax credits and subsidies seems correct as a literal reading of the most relevant provisions. Those are sections 1311, 1321, and 1401, which provide that people are eligible for tax credits and subsidies only if “enrolled … through an Exchange established by the state” [emphasis added].

It’s technically not correct to say that Oklahoma’s complaint is a challenge to ObamaCare, however. That complaint does not challenge a single jot or tittle of the statute. Oklahoma is asking a federal court to force the IRS to follow the statute, and to prevent the Obama administration from imposing taxes on Oklahoma residents whom Congress expressly exempted. Oklahoma’s complaint is indeed “the broadest and potentially most damaging of the legal challenges” related to ObamaCare. But think about it: if the only way to save ObamaCare from such a fate is to give the president extra-constitutional powers to tax and spend money without congressional authorization, just how unstable is this law? And is it really worth saving?